ARANOSIAN OIL CO., INC. & a.
STATE OF NEW HAMPSHIRE
Argued: June 18, 2015
Hillsborough-northern judicial district
Bianco Professional Association, of Concord (James J. Bianco, Jr. and Christina A. Ferrari on the brief, and Mr. Bianco orally), and Law Office of Manning & Zimmerman, PLLC, of Manchester (Anna Goulet Zimmerman on the brief), for the petitioners.
Joseph A. Foster, attorney general (K. Allen Brooks, senior assistant attorney general, on the brief and orally), for the respondent, the State of New Hampshire.
The petitioners, importers or distributors of oil into New Hampshire, appeal an order of the Superior Court (Brown, J.) denying their petition for declaratory judgment and equitable relief against the respondent, the State of New Hampshire. We affirm.
The Environmental Protection Agency (EPA) requires that owners of underground storage tanks demonstrate their ability to pay cleanup costs and compensate third parties for bodily injury and property damage arising out of releases of petroleum products from their tanks. See 40 C.F.R. § 280.93 (2014). New Hampshire's Oil Discharge and Disposal Cleanup Fund (ODD Fund), established in 1988, is an EPA-approved program that complies with the federal requirement. RSA ch. 146-D (Supp. 2014); see Laws 2014, 177:1 (repealing RSA chapter 146-D, eff. July 1, 2025). The purpose of the ODD Fund is
to establish financial responsibility for the cleanup of oil discharge and disposal, and to establish a fund to be used in addressing the costs incurred by the owners of underground storage facilities and bulk storage facilities for the cleanup of oil discharge and disposal, to protect groundwater, and for reimbursement for third party damages.
The ODD Fund operates as an excess insurance fund. An owner of an underground storage facility is eligible to receive reimbursements from the fund only to the extent that costs and damages incurred by the owner exceed the policy limits of the owner's private insurance. RSA 146-D:6, III (amended 2015). Each underground storage facility owner is subject to a statutory deductible ranging from $5, 000 to $30, 000 based upon the number of facilities owned, and to a reimbursement cap of $1, 500, 000. RSA 146-D:6, II, III (amended 2015). In addition, the underground storage facility owner must be in compliance with state law. RSA 146-D:6, I (amended 2015).
The ODD Fund is financed by a fee upon imported oil. RSA 146-D:3, I (amended 2015). The fee is paid on a per gallon basis by distributors who import oil into New Hampshire. RSA 146-D:3, II (amended 2015). The fee currently is $.015 per gallon. Id. The ODD Fund is capped at $10, 000, 000, at which point the fees are "discontinued and only reestablished when the fund's balance is less than $5, 000, 000." Id. Since 1988, when the ODD Fund was established, fees have been suspended twice, once from December 1996 through July 1998, and again from September 1999 through December 2000.
In 2003, the State sued several gasoline suppliers, refiners, and chemical manufacturers seeking damages for groundwater contamination allegedly caused by methyl tertiary butyl ether (MTBE), an oxygenate added to gasoline to increase the octane levels of fuels. See State v. Exxon Mobil Corp., 168 N.H. ___, ___ (decided October 2, 2015) (Exxon MTBE litigation). The petitioners were not parties to that lawsuit. Prior to trial, the State settled with all defendants except Exxon Mobil Corporation and ExxonMobil Oil Corporation (collectively, Exxon). Id. at ___. The State received $136, 510, 120 from those settlements. The case went to trial against Exxon in 2013. Id. at ___. The jury determined that the State's total damages from groundwater contamination due to MTBE are $816, 768, 018. Id. at ___. The jury determined that $142, 120, 005 of those damages were attributable to past cleanup costs. Id. at ___. The jury found that Exxon's market share for gasoline in New Hampshire during the applicable time period was 28.94% and, accordingly, the trial court entered an amended verdict of total damages against Exxon in the amount of $236, 372, 644. Id. at ___. We affirmed the verdict on appeal. See id. at ___.
In 2012, the petitioners brought a petition for declaratory judgment and equitable relief against the State. Each petitioner is a "'distributor'" of oil under RSA chapter 146-D and paid fees into the ODD Fund. They alleged that "[t]o date, the costs of MTBE remediation in the State of New Hampshire has been paid for primarily through" the ODD Fund, and that that fund is financed, in part, through fees that they paid. The petitioners sought a declaration that those fees "are unconstitutional as the [State] has recovered and/or will recover funds from the MTBE Lawsuit for the cost of MTBE remediation, " and that those fees should be reimbursed to them from: (1) "the settlement proceeds the [State] has received and will receive through the MTBE Litigation"; (2) "any future recovery the [State] receives through the MTBE Litigation"; and (3) "[a]dditionally, or in the alternative, . . . from the funds recovered, and/or to be recovered in the future in the MTBE Litigation, . . . under principles of equitable subrogation and/or unjust enrichment."
The parties stipulated to the following facts. The petitioners paid $29, 493, 100.15 into the ODD Fund from December 1989 through December 2012. All but three petitioners sold gasoline to both third-party customers and gas stations that they own or with which they are affiliated. When a petitioner sold gasoline to a third party, the petitioner included the $.015 per gallon fee in the invoice. For the gasoline provided to gas stations that a petitioner owned or with which it was affiliated, there was not an invoiced charge for the $.015 per gallon fee. From 1996 to the end of 2012, the petitioners have collectively received $15, 334, 855 in reimbursements from the ODD Fund. From its inception in 1988, through the end of fiscal year 2013, ODD Fund income totaled $221, 705, 908. Of that total, $142, ...